Home > Newsletter articles, Prop 8 Trial > My piece on AOL News: “The Institution Formerly Known as Marriage”

My piece on AOL News: “The Institution Formerly Known as Marriage”

August 5th, 2010

AOL News was looking for someone on the natural marriage side of the argument to comment on Judge Walker’s overturn of Prop 8. They found me. Here is the link to the article. Here is a reprint. Forward to your friends! Go over to AOL and join in the comments section. RRR’s will see the usual complaints, and will know that we have answers to every one of them!

Thanks to all my Peeps, for your support, even those of you who disagree. I appreciate everyone’s visiting over here! Tell all your friends who read AOL that they should come over here too. They would have heard alot of this a long time ago!

The essential public purpose of marriage is to attach mothers and fathers to their children and to one another. Judge Vaughn Walker’s ruling overturning California’s Proposition 8 illustrates that he does not understand this basic point.

He replaces this public purpose with private purposes of adults’ feelings and desires. He approvingly quotes a historian who explains that marriage is “a couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life.”

Nothing about children. No understanding that marriage connects generations. By the time Judge Walker and his ilk are finished, there will be nothing left of marriage but a government registry of friendships.

There are two big problems with this. First, “marriage” will no longer solve the essential problem of attaching children to their mothers and fathers. Instead of using biology or legal adoption as the determining factor in deciding who counts as a parent, the courts are inventing a new kind of parenthood to resolve these disputes.

“De Facto Parent” is the legal invention that usually involves court-created “tests” to decide whether a person has wiped enough noses and changed enough diapers to count as a “parent in fact.” The natural meaning of “mother” and “father” as biological categories are being replaced by a new kind of parenthood that expands the authority and discretion of the family courts.

This redefinition of parenthood is a natural by-product of the redefinition of marriage. Judge Walker’s decision Wednesday to redefine marriage is a catalyst for this redefinition of parenthood.

But the second big problem with turning marriage into a government registry of friendships is just this: It makes the legal recognition seem unnecessary. And that will lead some people to say, who needs marriage at all? Let’s just get rid of marriage, or get the state out of marriage, or tear down all the social, legal and institutional structures around marriage.

That’s not so bad for people who have no intention of having children and who get married as a status symbol. But it is not so great for people who do have children. And it’s not so great for children themselves. Children have a legitimate interest in knowing their own parents and their biological origins. Every mother needs to know who counts as the father of her children and who has legal responsibility for her children.

It is no good to say that parenthood is whatever the adults say it is, and the government can remain “neutral.” The first time a group of adults disputes about what their parenting “contract” means, the government will be involved, using criteria of its own.
Once again, redefining marriage increases the authority and discretion of the family courts. The natural concept of mother and father as biological realities will be undermined.

Surely the voters have the right to be consulted before making such a major change in public policy. This is just one of the many ways that redefining marriage to be the union of any two persons will affect everyone.

Judge Walker has no right to disparage the voters of California the way he does in this opinion. Let the democratic process play itself out. We have plenty to talk about, without judges telling us we are all bigots unless we agree with them.

Print Friendly
Be Sociable, Share!
  1. Sophie
    August 13th, 2010 at 05:04 | #1

    Your argument stems from your initial premise, that “The essential public purpose of marriage is to attach mothers and fathers to their children and to one another. Judge Vaughn Walker’s ruling overturning California’s Proposition 8 illustrates that he does not understand this basic point.”

    Your premise is erroneous. Judge Vaughn Walker examined the evidence for this premise with the logical rigor that characterized his conduct throughout the trial and established that it was not supported by the evidence. If it were then marriages where there is no possibility of children would not be valid and of course they are. Childlessness is no bar to marriage: about a fifth of marriages now are childless. However 40% of births are to women who have never married.



    The statistics offer no support to your contention that marriage and children are inextricably linked or that having children is the essential public purpose of marriage. Furthermore, the statistics are entirely unrelated to homosexuality. It is heterosexuals who are responsible for them. The conflation of social problems caused by irresponsible reproduction with homosexuality is misleading and has no basis in fact. There is no connection. Belief is not evidence, at least not in court and not under the Constitution. If voter numbers outweighed the Constitution we would still have slavery.

    Historically speaking, marriage has principally been about property and about joining kinship groups. The current ideal of a love match between two adults is relatively very recent. A truly “traditional” marriage would almost certainly be polygamous – the most common form of marriage throughout human history. The idea that people may choose who they marry is also new – even revolutionary – in historical terms. Arranged marriages are still the norm in many cultures. Up until the 14th Century the only people who did marry formally were those wealthy enough to make a legal contract worthwhile. Talk of redefining marriage as though this was a new thing, or a bad one, ignores the history of marriage. What you see as traditional, even immutable, is actually relatively recent.

    The supporters of Prop 8 maintained the ban was supported by hard evidence, and undertook to prove 23 areas in which gay marriage would damage the family. They entirely failed to do so. Even their sole expert witness was accepted as an expert only with reservations, having no formal relevant qualifications.

    Where were the peer-reviewed papers to support their case? Where were the expert witnesses? Conspicuous by their absence. Despite being very well-funded the Defendants failed to produce evidence that would hold up under cross-examination. It was an astonishingly bad defense.

    Conversely, anyone who reads the trial papers cannot fail to observe how thoroughly Prop 8’s opponents supported their claims. They produced a total of 14 witnesses supported by peer-reviewed research, other factual material and the endorsement of most medical experts. The American Anthropological Association, the American Psycho-Analytic Association, the American Psychological Association, the American Psychiatric Association and the American Academy of Paediatrics all support gay marriage on the basis on peer-reviewed research.

    Once religious objections are disallowed, you can only rely on matters of demonstrable fact. On the basis of the facts, the case against gay marriage collapses. Judge Vaughn Walker deliberately conducted the case with a view to intense and hostile scrutiny during the inevitable appeals. Appellate courts often ignore findings of law, but seldom findings of fact. Many commentators believe Walker’s findings are so well reasoned they’ll make it hard for the Supreme Court to overturn the decision. The American Bar Association is convinced. Within days the ABA came out in support, passing a Resolution supporting civil marriage nationwide.

    You seem to mistake your personal religious belief and ideals for a truth that should apply universally. You may wish that all children were born to married couples and that the world was a place in which biological parents are never abusive, neglectful or absent. You may wish there was no infertility, IVF, adoption and voluntary childlessness. However if there is evidence to support the contention that gay marriage will damage marriage, children or the family, then why did the supporters of Prop 8 not produce it? The Judge gave them every opportunity. He was scrupulous in his fairness – with an eye to future appeals, I assume. There’s no escaping the fact that the defense lost on the evidence, and lost by a country mile.

  2. Emma
    August 16th, 2010 at 11:29 | #2

    I’m not sure what you mean by “natural” marriage. Biblical marriage? Polygamy? Arranged marriage? Opposite sex marriage in which a woman is not permitted to own or inherit property and is for all intents and purposes owned by her husband? Or a more modern-day interpretation in which we are able to marry whom we love, and are viewed as equal in the eyes of the law?

  3. August 18th, 2010 at 07:59 | #3

    Well said – I worry for the world that my future grandchildren will be coming into. More important than ever to get conservatives out to vote this fall!

  4. Sean
    August 23rd, 2010 at 18:35 | #4

    Every childless married couple should be thoroughly insulted by this article. It isn’t Judge Walker who is ignorant about what marriage means. But in any event, let’s say Morse is correct. On what basis does it disqualify same-sex couples from marrying? The fact is, it doesn’t.

  5. Jasmeet
    September 8th, 2010 at 16:11 | #5

    Sophie, your comment is as rudderless as can be. I think you have misunderstood the angle of Jennifer’s comments.
    Perhaps in a moment of over zealousness, you have not noticed that Jennifer had mentioned the redefinition of marriage only in the heterosexual context. There is no reference to homosexual unions at all. What Jennifer is trying to say is that the redefinition (of marriage) by Judge Walker deprives the institution of marriage of its spiritual and sacred connotation. It this reason that many (Heterosexual) couples today don’t even feel the need to marry to have children reasoning that its “just a piece of paper”. You have thus tried your best to bring in the homosexual angle which the writer has at no point talked anything about. Kindly read properly before you comment. You were perhaps too eager trying to paint the article with homophobic overtones, which the article doesn’t have. @Sophie

  6. Sean
    September 18th, 2010 at 16:57 | #6

    How can anything have “an essential public purpose” if that purpose is unnecessary (having children) to the thing with the purpose (getting married)???

  7. James
    October 3rd, 2010 at 19:06 | #7

    @Sophie I admire you greatly. Thank you for what you are doing for good arguments and laws and morals in this country. And as Transexual, let me thank you for supporting (I assume) LGBT rights.

  8. October 4th, 2010 at 10:05 | #8

    Thanks James, for your encouragement but Sophie actually has many errors in her post.

    Since you believe in good arguments, and laws and morals in the country, as well as logic, instead of a prejudiced opinion of where those arguments should lead to, I’ll work with those principles to outline Sophie’s errors.

    Sophie: > If it were [if the premise discussed in the article above were true] then marriages where there is no possibility of children would not be valid and of course they are.

    That is half true. Where we have a same-sex couple, there is no possibility of children. The basic type we expect for procreation is as specified in the definition of marriage, “between one man and one woman”.

    So the justification Sophie and others who believe in that argument are looking for is there.

    If anything your argument (and Walker’s if his is indeed the same as yours) supports that premise of marriage, it does not invalidate it.

    But lets look beyond that, because I think the contradiction you are really pointing to is a couple who is of the procreative type, which still cannot have children.

    Don’t confuse a biological type with a discrete mathematical set. In mathematics, if you define the set of all even numbers, then to find a result that is not even in fact invalidates the process as being true to the definition of the mathematical set.

    But people aren’t numbers, and biology is not as clear cut as mathematics. Sure, the type of procreative relationship is still without a doubt where you expect procreation, and you don’t expect it anywhere else. But the fact that not all man-woman combinations can produce children is because biology isn’t perfect in that area.

    Once again, it is perfect in the expectation of children to come from the requirement to integrate two genders. But it is not perfect in providing children to all man-woman combinations. Some people are disabled. Here’s another similar analogy.

    We expect animals that walk to be of a type that has two legs (an important indication of an evolutionary distinction between pre-man and man). But that doesn’t mean all two-legged animals can walk. Nor does it need to. One simply looks at the organs, the leg shape, the hip-socket type, the foot shape, and even where the spine connects to the skull, to determine if they are a walking type animal. That only defines a type, but doesn’t try to perfectly predict who can and who can’t walk.

    So confusing logic with biology, Sophie has, (and Judge Walker if he relies on the same mistaken argument) completely misapplied the evidence at hand.

    If you can come up with an argument which doesn’t confuse the number-perfection of logic and practical useful application of biology, then you can have a contradiction. And, in fact, you would if you said a same-sex couple is a marriage, when marriage’s purpose is identified in its purpose to meet the unique needs of procreation.

    There is more to point out that is wrong in Sophie’s comment about the history of marriage. But I’ll leave it as sufficient to show that the contradiction she believes is there, is in fact not there at all. And the misapplication of logic and biology she uses to come to that contradiction is a complete misunderstanding of the differences between the two.

    You wouldn’t rely on such a misunderstanding would you?

  9. Sam
    October 16th, 2010 at 20:57 | #9

    This article is full of homophobic overtones. Prop 8 was to redefine the legal definition of marriage in that state so that same-sex couples could not get legally married. To be against the overturning of Prop 8 is to be against same-sex couples being married.
    The fact that you try to better yourself by saying, “I’m not homophobic at all! THIS is the REAL reason we’re against this decision, the only effect of which is that gay couples can get married again!” makes me totally sick.

  10. October 17th, 2010 at 23:11 | #10

    I think Sam’s comment shows the kind of prejudice and bigotry we are trying to speak out against.

    While marriage is about a relationship that biologically is the type that brings about children, for the sake of protecting their rights and the rights of the two people who created it together, all Sam every considers is one group of people — over and over again.

    When people look circumspectly at all the groups involved, the answer is clear. When people look at just “same-sex couples” the answer may also be just as clear, but it is a different answer. The question is do we make others who depend on marriage equality — the equal recognition of the rights and responsibilities of the man, woman, and child they have together — be put out in the cold without government recognition of the unique concerns of their procreative type of relationship for the sake of homosexuality?

    Well, do we?

Comments are closed.